Article by Pattinson & Brewer Solicitors
Age discrimination has been one of the headline stories in the press. This issue is finally getting the attention it deserves.
The Equality Act 2010, which came into force in October 2010 suspended and replaced previous anti-discrimination law in Great Britain. The Act introduced to all areas of discrimination, including age discrimination, the area of associative discrimination and discrimination based on perception.
The first step of securing an interview and employment is often the biggest hurdle for older employees. When a prospective employee applies for a job there are now strict laws, which protect actual and prospective employees from being discriminated against by their potential employer because of their age.
The following are guidelines to assist employees when seeking employment:
Until 6th April 2011 if you are over 65 you are not protected
There is an exemption under the law which means that if you are:
• over 65‚ or
• over your employer’s normal retirement age if this is over 65‚ or
• within six months of the age of 65‚ or the employer’s normal retirement age if this is higher‚ you have no protection against age discrimination when applying for jobs.
An employer will be able to refuse to consider you for a job over this age‚ without having to justify it‚ and you will have no way of challenging or appealing against the decision.
As of 6th April 2011 there will be a change in the law which will abolish the default retirement age. Employers will have to go further to justify not employing someone over 65 years. Employers will still be able to justify it if they can establish that it is a proportionate means of achieving a legitimate aim. At present this is an unclear area of law and if you have a query you may need to take further advice.
Job descriptions and person specifications
Job descriptions and job specifications should state what the job requires in terms of skills and what the job entails. The specification should not contain anything, which is not directly related to the job. For example, they should avoid asking for ‘so many years’ experience’. You could challenge a job description, if you consider it was discriminatory, and the employer would then have to justify it.
Advertisements must focus on the job requirements and the tasks and not on the person. Employers should not include age limits in job adverts‚ and should avoid using words, which could suggest they are looking for applicants from a particular age group. The advertisement should only ask for relevant qualifications and should avoid references, however oblique, to age. The advertisement should not use wording such as “young and dynamic” as this may lead to age bias. Pictures used in advertisements can also be suggestive of age bias.
Targeting particular age groups
Employers should avoid targeting a particular age group to satisfy customer prejudice or target markets, even if the target customers belong to a particular age group. This behaviour will not be justifiable. In the recent case of Miriam O’Reilly v the BBC the Tribunal judgement stated “The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewers, is a legitimate aim, however we do not accept that it has been established that using younger presenters is required to appeal to such an audience.”
It is not unlawful to ask for the date of birth but since this could be used as evidence of an intention to discriminate, this information should not be sought on an application form. Employers can ask for dates of birth on a monitoring form as well as on a personal details form once you are successful in getting the job.
Recruitment and Search Agencies
Using agencies does not avoid the risk of age discrimination claims. If an employer uses a recruitment agency they must ensure that the agency acts appropriately and in accordance with age discrimination legislation. If an employer tells an agency that having a characteristic related to age is a genuine occupational requirement for a particular job‚ the agency can rely on this statement so long as it is reasonable for it to do so. It would then be for the employer‚ not the agency‚ to show that age is a genuine occupational requirement for the job.
Agencies have a duty under the law not to discriminate against you because of your age. They must not deny you access to their services‚ or to particular job placements because of your age (unless they can justify this or it is covered by an exception).
Employers must ensure that they do not make assumptions about the health status of an older candidate. Some jobs do require physically challenging tasks. In such situations, employers should either ask all the candidates about health and fitness, or none of them.
Ideally shortlisting should be done by more than one person, and they should base their decisions on skills and ability alone. The job descriptions and person specifications should be used to judge applicants.
Ideally, interviews should be carried out by more than one person. The interviewer should avoid asking questions related to age. For example. interviewers should not ask, “How would you feel about managing older/younger people?” Interviewers should not make any other comments about age. All candidates should be asked the same questions. Questions should focus on competencies needed for the role. No assumptions should be made. An older person will not necessarily be less physically fit or less mentally able than a younger counterpart.
If the employer uses tests/medicals when making selection decisions, there should be transparent reasons for doing so. Some tests, e.g. assessment centres/psychometric testing, may put certain workers at a disadvantage. All assessment techniques should be validated and judged against any age neutral criteria and any bias eliminated.
Some jobs will also require physical capability and applicants may be asked to attend a medical. Employers should make any assumptions about an individual’s fitness, and if medical tests are necessary, they should be carried out for all ages.
What to do if you think you have been discriminated against in recruitment?
If you believe you have a claim for age discrimination, or any other Tribunal claim, you should ensure that your claim is received by the Tribunal within 3 months less one day of the act complained of.
These cases often turn on the evidence you have been able to obtain, and there is a specific questionnaire procedure, which can be used to obtain information in support of such a claim or to help you decide whether or not to bring one. Further information on this and other discrimination issues can be found at www.equalityhumanrights.com, www.employmenttribunals.gov.uk and www.acas.org.uk.
The content of this article is intended to provide a general guide only to certain aspects of the subject matter. Legal advice should be sought about your specific circumstances.
Felicia Epstein is a Solicitor specialising in Employment Law at Pattinson & Brewer Solicitors. If you would like to obtain legal advice on the above or any other employment law matters contact her via our website at www.pbemploymentlaw.co.uk or email: firstname.lastname@example.org